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Thomas Warren v. Richard J. Mandel

June 20, 2012

THOMAS WARREN
v.
RICHARD J. MANDEL, M.D., ET AL



The opinion of the court was delivered by: Joyner, C.J.

MEMORANDUM AND ORDER

This Section 1983 action is presently before the Court for disposition of the Motion of Defendant, Richard Mandel, M.D. to Dismiss Count IX of Plaintiff's Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons which follow, the Defendant's motion is granted.

Factual Background

It appears from the amended complaint of the Plaintiff that this lawsuit has its origins in the events surrounding and immediately following September 26, 2009. Plaintiff Thomas Warren allegedly sustained a Bennett's fracture of his left thumb while playing basketball at the Curran-Fromhold Correctional Facility (hereinafter "CFCF") in Philadelphia. (See Ex. A at ¶ 22.) At about 11:15 am, Plaintiff went to the medical department of the CFCF, where co-Defendant Dr. Luis Jose Boggio reviewed the x-ray of Plaintiff's assertedly swollen left hand. (See Ex. A at ¶ 21.) Dr. Boggio's review of the x-ray concluded that there were no broken bones. (See Ex. A at ¶ 23.)

Plaintiff states that on September 29, 2009, he was involved in a physical altercation with another inmate. (See Ex. A at ¶ 24.) On September 30, 2009, Plaintiff met with Dr. Clemons at the CFCF medical department. Dr. Clemons ordered and read a new xray, and informed Plaintiff that he had sustained a hand fracture. Dr. Clemons also reviewed the September 26, 2009 x-ray, and informed Plaintiff that the fracture was present on that date as well. (See Ex. A at ¶ 25.) Co-Defendant Dr. Arnone concurred with Dr. Clemons that the September 30 x-ray depicted a broken bone. Dr. Arnone subsequently scheduled Mr. Warren to see Dr. Mandel, an orthopedic surgeon. (See Ex. A at ¶ 26.)

On October 2, 2009, Dr. Mandel viewed Plaintiff's x-ray at CFCF, and informed Plaintiff that he would require surgery to repair his fractured hand. (See Ex. A at ¶ 27.) The surgery would include inserting two metal pins in the hand. (See Ex. A at ¶ 27.)

The surgery took place on October 9, 2009, and Dr. Mandel subsequently splinted and bandaged Plaintiff's left hand. (See Ex. A at ¶ 28.) Plaintiff alleges that Dr. Mandel scheduled a follow-up appointment for him ten to fourteen days after surgery. (See Ex. A at ¶ 29.)

On October 17, 2009, Plaintiff went to the CFCF medical department, complaining of a sharp pain in his left hand. The on-duty physician informed him that one of the metal pins in his hand was poking against his skin, and rubbing against his splint. The physician subsequently ordered another x-ray, and Tylenol 3 for Plaintiff's pain. (See Ex. A at ¶ 30.) He also purportedly informed Plaintiff that he would schedule another appointment with an orthopedic surgeon. (See Ex. A at ¶ 30.)

On October 19, 2009, co-Defendant Dr. Arnone ordered and reviewed a new x-ray of Plaintiff's left hand. (See Ex. A at ¶ 31.) Defendant returned to the CFCF medical department on October 24, 2009, where Dr. Margaret Burke examined him. Dr. Burke ordered Plaintiff to see Dr. Mandel again, and also prescribed Tylenol 3 for pain. (See Ex. A at ¶ 32.)

Plaintiff was finally scheduled to see Dr. Mandel on November 5, 2009. On the way to the appointment, Plaintiff was informed that Dr. Mandel had canceled the appointment, because Plaintiff was not on time. (See Ex. A at ¶ 36.) At that time, corrections officers allegedly informed Dr. Mandel that Plaintiff was in severe pain, and that the pin was sticking out of Plaintiff's hand. (See Ex. A at ¶ 36.) That same day, November 5, 2009, after learning that Dr. Mandel had canceled the appointment, Dr. Burke called Dr. Mandel to inform him that "the surgical pin was sticking out of Plaintiff's left hand, and that the Plaintiff was in excruciating pain." (See Ex. A at ¶ 37.)

Dr. Mandel told Dr. Burke to send Plaintiff to an emergency room. (See Ex. A at ¶ 37.) Despite this instruction, Plaintiff was not taken to an emergency room.

Plaintiff returned to see Dr. Mandel on November 11, 2009, and although Dr. Mandel removed the pin from Plaintiff's hand, he did not re-splint the hand. (See Ex. A at ¶ 41.) Plaintiff was again seen by Dr. Mandel on November 19, 2009, when Dr. Mandel removed a K wire that was backing out of Plaintiff's left hand. (See Ex. A at ¶ 41.) Once again, the hand was not re-splinted. (See Ex A at ¶ 41.) Dr. Mandel again examined Plaintiff on March 1, 2010, at which time Dr. Mandel removed another K wire that was protruding from Plaintiff's left hand. (See Ex A at ¶ 44.) Dr. Mandel also recommended surgery to remove the remaining pin and K wire. (See Ex. A at ¶ 44.) Plaintiff refused the surgery, which was scheduled for March 12, 2010, because Plaintiff stated that the surgery recommendation was contrary to the recommendation made by Dr. Mandel's colleague, Dr. McHugh. (See Ex. A at ¶ 45.) After Plaintiff refused the surgery, Dr. Mandel apparently did not offer any other options to Plaintiff for corrective surgery. (See Ex. A at ¶ 46.)

The next time Plaintiff was examined by a physician was on July 16, 2010, when Dr. Albert A. Weiss examined Plaintiff's hand at Temple University Hospital. (See Ex. A at ¶ 51.) By this time, "the condition of Plaintiff's hand had deteriorated to such an extent that revision surgery was no longer possible." (See Ex. A at ¶ 51.) Plaintiff subsequently underwent surgery which, by design, resulted in total loss of Carpal-MetaCarpal joint motion in Plaintiff's left thumb. (See Ex. A at ¶ 52.) The surgery took place at Temple University Hospital in December of 2010.

Plaintiff initially filed a pro se civil complaint against Dr. Mandel and various other correctional officers and health care providers on January 29, 2010. After counsel was appointed to represent him, Plaintiff subsequently filed an amended complaint on March 14, 2011. After each of the defendants filed Motions to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the plaintiff voluntarily withdrew his amended complaint. He then filed a new civil action, and once again amended ...


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